Camden & Islington Community Services NHS Trust v Kennedy [1996] UKEAT 1048_95_3001

EAT
Camden & Islington Community Services NHS Trust v Kennedy
[1996] UKEAT 1048_95_3001 · 1996-01-30

JUDGE C SMITH QC:

This is an appeal by the Appellants, Camden & Islington Community Services NHS Trust, against the decision of an Industrial Tribunal sitting at Stratford on 10 August 1995 when the Chairman sitting alone held, on a preliminary point, that Ms Kennedy's application, she being the Applicant, for unfair dismissal, should be allowed to proceed. There was no dispute before the Industrial Tribunal that the Originating Application was out of time, in that it had not been presented within three months of the effective date of termination of Ms Kennedy's contract of employment, which was 28 September 1994. Thus it had to be presented within three months, namely by 27 December 1994. The learned Chairman however held (as we interpret his decision) that it was not reasonably practicable to present it within three months since he held, apparently seeking to apply the principle laid down in Capital Foods Retail Limited v Corrigan [1993] IRLR 430, in paragraph 6 of the decision that even if, as he put it, it is assumed that the Solicitor acting for the Respondent might have been expected to receive an acknowledgment of the Originating Application on or about 5 January 1995, it was not unreasonable for him to delay checking until 30 January 1995 since the delay was much less than that in the Capital Foods case.The Appellants submit that in so deciding the Chairman:(1) both misstated and misapplied the principle laid down in the Capital Foods case and allowed himself to apply too lax a test instead of applying the stringent test which it was submitted is required by Capital Foods and(2) as an alternative ground that, if the Chairman did correctly state and correctly apply the test laid down in Capital Foods, that he reached a conclusion that was so plainly wrong that it cannot stand.Counsel for the Respondent submitted that the test laid down in Capital Foods was correctly stated and applied by the learned Chairman and that, having correctly stated and correctly applied the proper test, on the second point it cannot be said that the findings of fact by the Chairman that the conduct of the Solicitor was reasonable in all the circumstances was so unreasonable that it can be overturned by this Appeal Tribunal, since it cannot be properly characterised as perverse.We should say that we have been greatly assisted by the submissions that have been made to us on both sides by Counsel. It is important before we deal with the matter in detail to set out certain facts which are not in dispute:(1) that at all material times the Respondent, Ms Kennedy was advised by a Solicitor, who, practising in this field as he does, must be taken to be familiar with the crucial importance of complying with the short time limits for presenting Originating Applications to Industrial Tribunals;(2) that the Solicitor posted the application to the Central Office of Industrial Tribunals by First Class post on 19 December 1994; the time expired on 27 December 1994. What the Solicitor was found to have done, as we understand the findings of the learned Chairman, was to have made a note in his diary (presumably his 1995 diary) to check by way of chasing the matter by the end of January 1995. This seems apparent from an affidavit sworn by the Solicitor which we have looked at;(3) that the Solicitor checked by telephone with the appropriate office of Industrial Tribunals on 30 January 1995, and was told that the application had not been received. He then wrote on 31 January 1995 setting out the circumstances in which he had posted the Originating Application and enclosing a photocopy of the Original Application which he had sent on 19 December 1995 which was received by the relevant office of the Industrial Tribunals on 2 February 1995.In the light of the submissions that have been made to us, we have had to consider carefully what principle was in fact laid down by the Employment Appeal Tribunal in the fairly recent case of Capital Foods Retail Limited v Corrigan [1993] IRLR 430, decided by the Employment Appeal Tribunal sitting in Edinburgh. In our judgment it is to be found in paragraph 6 of the decision at page 431. From that paragraph it is clear, in our judgment, that the Employment Appeal Tribunal were there holding that the existence of an impediment, namely in the case in which they were considering the loss of an Originating Application in the post, is not sufficient to satisfy the test in Section 67(2) of reasonable practicability:
" ... unless the applicant, or her advisers, have taken all the steps they should reasonably have taken, in the circumstances, to see that the application was timeously presented. ..."
Then, a little lower down, of considerable relevance in our judgment, there is this sentence:
"... It seems to us to be a matter of ordinary and prudent practice to employ some system of checking that replies which might reasonably be expected within a certain period have in fact been received, and that the conduct of business is taking a normal course. ..."
We are satisfied that by that test the Employment Appeal Tribunal were holding that it is not just any check on the part of a Solicitor which will do - it must be such a check as will establish whether the conduct of business is taking a normal course. In other words, in our judgment, the check which the Employment Appeal Tribunal had in mind and were laying down as the appropriate check is not an ex post facto check in order to discover what has happened, perhaps many weeks or even months afterwards, but provides for such a system of checking as will enable a Solicitor to find out at the time, at or near the time, that replies, which by then might reasonably have been expected to have been received, have in fact been received and that the conduct of business is taking a normal course.We are satisfied that the Employment Appeal Tribunal were intending to lay down that kind of stringent check. We are also satisfied that nothing in Corrigan is in any way inconsistent with the important decision of Palmer and Another v Southend-On-Sea Borough Council [1984] ICR 372, which is binding upon us of course, where, at page 384, the Court of Appeal, having considered all the authorities on this difficult subject, decided that "reasonably practicable" meant "reasonably feasible", so that they concluded that perhaps the best way of interpreting the words "reasonably practicable" is to ask the question "Was it reasonably feasible to present the complaint to the Industrial Tribunal within the relevant three months?". The Court of Appeal held that that is perhaps the best approach to the correct application of the relevant subsection.In the course of its judgment, the Court of Appeal at page 385 at E, made this observation:
"In any event it will probably be relevant in most cases for the industrial tribunal to ask itself whether there has been any substantial fault on the part of the employee or his adviser which has led to the failure to comply with the statutory time limit."
In our judgment, and it is not really suggested to the contrary, there is nothing at all inconsistent between that general statement of principle laid down by the Court of Appeal on the one hand and the application of it by the Scottish Division of this Employment Appeal Tribunal, in Capital Foods Retail Ltd v Corrigan , nor in our judgment is the Employment Appeal Tribunal's approach in the case of Corrigan in any way inconsistent with what was decided by the Employment Appeal Tribunal in St Basil's Centre Ltd v McCrossan [1991] IRLR 455 , contrary to the submission that was made to us by Ms Brown on behalf of the Respondent.In our judgment the Employment Appeal Tribunal in that case was concerned with the antecedent question of whether a complainant could reasonably have expected the application to be delivered in the ordinary course of post.In our judgment the Employment Appeal Tribunal in Corrigan correctly distinguished the issue which was before the Employment Appeal Tribunal in the St Basil's Centre case from the decision they had to make in the case of Corrigan in the last few lines of paragraph 6 at page 431 beginning with the sentence:
"We do not think that anything that was said in St Basil's Centre v McCrossan [and so on] ..."
In our judgment the Appeal Tribunal were there making a correct distinction between what they had to decide and what had been decided in St Basil's Centre v McCrossan. In our judgment, the decision we have to make is very similar indeed to that which had to be made in the case of Corrigan .In our judgment an analysis of paragraph 6 of the Chairman's decision establishes that although the Chairman appeared to be both stating and applying the correct test, as laid down in Corrigan , in fact he did not state or apply it correctly. He appears to us to understand Corrigan as requiring no more than that there should be a system in place which should enable a solicitor to find out, at some unspecified date, perhaps well after the time when replies would have been expected to have been received, namely in particular, the receipt of an acknowledgment that the Originating Application had been received, provided there was not an unreasonable delay in making such a check.In our judgment this is not what the stringent test in Corrigan requires of a Solicitor who must be expected to be well aware of the cardinal importance of establishing at or very close to the time by which it should have been acknowledged that an application he has made has been received by the Central Office of Industrial Tribunals.It is in our judgment clear from Corrigan that the Employment Appeal Tribunal were holding that for a solicitor to act reasonably and without fault, he must have a system in place which would alert him at the time, one way or the other, whether replies, which should at a given date have been received, have or have not at that time been received. Such a system has as its purpose, as the Employment Appeal Tribunal make clear in Corrigan , for the solicitor to find out contemporaneously whether the conduct of business is taking a normal course.In our judgment the Chairman misapplied the test in holding that it was reasonable to have a system involving no more than a check at the end of the month. Whilst we accept that the Chairman found that the earliest an acknowledgement would have been received was 5 January 1995, we note that he assumed (rightly in our judgment) that the Solicitor would have expected to receive an acknowledgment on or about 5 January 1995. In our judgment, having regard to the principle in Corrigan the Chairman erred in finding that a system which involved a check several weeks later, at the end of the month, could be regarded as satisfying the requirement that solicitors should take all reasonable steps to see that an application was timeously presented.In our judgment the Chairman substituted a less stringent test of "general reasonableness" instead of applying his mind to the precise and, indeed, stringent test which is required by virtue of Corrigan . We appreciate, and have taken into account, that Corrigan is not to be construed like a statute, but we consider that the Employment Appeal Tribunal would have had in mind in laying down the principle in Corrigan the general statement made by Popplewell J in Foster v South Glamorgan Health Authority [1988] ICR 526 at page 528 at E, namely:
"It has been the practice of industrial tribunals, and this appeal tribunal, to apply the limitation periods with very great strictness. They go to jurisdiction. The rather leisurely pace at which proceedings in the High Court and elsewhere are conducted have no place in industrial tribunals or this appeal tribunal. ..."
A competent solicitor practising in this field must be taken to appreciate the vital importance of complying with time limits strictly and having in place a system designed to ensure that such limits are complied with at the time when they are supposed to be being complied with.In our judgment, examination of the reasoning and findings of the Chairman in paragraph 6 shows that he misstated and misapplied the test laid down in Corrigan for the reasons we have stated. Although we do not strictly need to decide the point, if, contrary to our judgment, the Chairman did state and apply the correct test laid down in Corrigan , then we consider that he reached a conclusion which was plainly wrong.In this regard we have been rightly and forcefully reminded by Ms Brown that we, as an Appeal Tribunal, have to go a very long way indeed to arrive at such a finding. We would have to be satisfied that the decision of fact was so clearly wrong that it could not stand, or that it was a conclusion that no reasonable Tribunal could properly have come to. However, despite the stringency of this test we are unanimously of the view that for the learned Chairman (with respect to him) to hold that his system of checking at the end of January 1995 could amount to a reasonable compliance with the test laid down in Corrigan , as we have understood it, is in our judgment a decision of fact which was plainly wrong. Thus, on that ground also, had it been necessary so to do we would have allowed the appeal. However, we repeat that we accept the primary submission made to us by Counsel for the Appellants, namely that the Chairman erred in law both in his statement of and application of the test in Corrigan .Accordingly the appeal is allowed and we order that the application is time barred.